Mohammad Yousuf Misgar & Anr @APPELLANT@Hash State Of Jammu & Kashmir & Ors

Writ petitions on hand, having akin cause of action, similar set of facts urged, generic gravamen groused, and alike relief

supplicated, have been, therefore, clubbed to avert multiple, varied and inconsistent conclusions.

The fascicule of facts, necessitous and germane to comprehend the backdrop of the present writ petitions, based

whereupon a case has been set in motion and the present legal process built, has its genesis and origin to the envisioning of

the claim of the petitioners that their implication in the case FIR nos. 18 & 19 of 2005 and the sanction for prosecution, has

ended in melancholy and uncertainty. The writ petitions are taken ad seriatim.

SWP no.2426/2012

Petitioner, in the writ petition on hand, claims that he was holding the gazetted post in the Social Welfare Department

and was inducted in the Time Scale KAS Cadre in the year 2003. He was posted as Assistant Commissioner, Development,

Anantnag, in the Rural Development Department, in the year 2004-2005. An FIR bearing no.18/2005 in the police station

Vigilance Organisation Kashmir, was lodged qua misappropriation of funds in execution of the electrification work of the

Panchayat Ghar buildings in District Anantnag during the financial year 2004-2005. An inquiry was conducted by the Rural

Development Department. It was found that, as maintained by the petitioner, he was not in any way involved in the said

scandal and the Rural Development Department also conducted the verification of the works executed through a Committee

consisting of the District Vigilance Officers, who found that the works in the said District had been executed as per the

estimates. The verification conducted by the District Vigilance Officers was further got verified through a Committee of

three IAS Officers constituted by the General Administration Department, which reported that the work has been executed

in the said District as per the approved estimates. The petitioner is aggrieved of and impugns the Government Order no.36-

GAD (Vig) of 2012 dated 5th October 2012, according sanction to the prosecution of, inter alia, the petitioner for the

commission of offences punishable under Section 5(1)(c), 5(1)(d) read with Section 5(2) of J&K Prevention of Corruption Act,

Samvat 2006 and Section 420-A, 467, 120-B RPC in case FIR no.18/2005 Police Station Vigilance Organisation Kashmir, on the

grounds detailed out in the writ petition on hand. He seeks the following relief:

a) The order no.36-GAD (Vig) of 2012 dated 05.10.2012 so far as it relates to grant of sanction for prosecution against the

petitioner may be quashed and respondent government be directed to consider the entire material referred above and in

consequence to same close the FIR against the writ petitioner in view of the peculiar circumstances of the case as same shall

be in the interest of justice.

Respondent no.1, in his reply, avers that after completing the investigation in the case FIR no.18/2005, registered against

accused, including the petitioner, the State Vigilance Organisation, Kashmir, recommended the case for grant of prosecution

against the accused public servants including the petitioner herein for their involvement in misappropriation of funds in

league with some Self Help Groups in execution of electrification works in Panchayat Ghar buildings in Anantnag District.

On the basis of record and evidence collected during investigation by the Investigating Agency and on its thorough

consideration and proper appreciation in the General Administration Department, the competent authority has in exercise

of powers under Section 6 of the J&K Prevention of Corruption Act, Samvat, 2006, accorded sanction to the prosecution of

the accused public servants including the petitioner vide Government Order no.36-GAD (Vig) of 2012 dated 5th October

2012, which does not suffer from any illegality.

Respondent no.2, in his reply, insists that the petitioner had released the funds to the tune of Rs.20.00 lacs on pick and

choose basis in favour of three Block Development Officers of District Anantnag. He avers that the enquiry conducted by the

Rural Development Department and by the Committee of IAS officers had no locus to look into the criminalities like abuse of

official position as that domain under law falls entirely within the purview of respondent no.2. The respondent no.2

maintains that he conducted the investigation into the offences registered against the accused officers. The conclusion of the

committee as regards physical verification has no bearing on the investigation conducted in the case. It is stated that

Accountability Commission had taken suo moto cognisance of the matter and the comments of the Vigilance Organisation

were also sought. The State Vigilance Organisation in its reply made it clear that the findings returned by the two

committees did not ipso facto bar the criminal prosecution against the accused persons, who were found to have committed

criminal misconduct. The respondent no.2 claims that the material collected during the course of investigation has

established the omission and commissions committed by the petitioner in connivance with other accused persons, which was

submitted before the competent authority, who after applying proper mind to the facts and circumstances of the case,

granted sanction to launch the prosecution against the accused persons, including the petitioner.

Rejoinder has been filed by the petitioner. He states that the allegation levelled against him was baseless inasmuch as

Rs.80.00 lacs and Rs.12.00 lacs placed at the disposal of the petitioner for the electrification work, were reallotted to the

Block Development Officer, Qaimoh, for purchase and installation of the electric works. It is alleged that the criminal

conspiracy was hatched by the Executive Engineer R&B (Electric) with the officials, which was got approved by the

Secretary, Rural Development and despite drawing of the money, there was no installation of the electric items and the fans

purchased were of inferior quality and the said works were allotted without free and fair competition. The FIR was lodged

during execution of the work period and the Vigilance Organisation permitted the concerned officers to complete the work

even during the investigation and the government constituted a team of three senior IAS Officers for holding the physical

verification. The said Committee conducted the physical check of some of the Panchayat Ghars and reported that the work

has been executed, but some electric items were found damaged by the children, which means that they found that the

electrification work was found to have been executed. The said committee reported that the electric items were found to

correspond with the numbers mentioned in the statements furnished by the two committees, but the said committee did not

give report on quality of the items installed. It is also asserted that the prosecution sanction order stands issued by the

General Administration Department, wherein the sanction has been granted against the petitioner by alleging that he

released funds, which were transmitted to him by the Director for electrification in favour of the Block Development Officer,

Qaimoh, for doing the electrification, but BDO Qaimoh has procured the substandard material. It is also alleged that the

Director released an amount of Rs.20.00 lacs to ACD for taking up the electrification of 25 Panchayat Ghars in response to

the requisition made and he asked three BDOs to take up electrification works in respective blocks. It is alleged that the

said BDOs had to electrify 29 Panchayat Ghars when Shri Reyaz ul Haq had already drawn an amount of Rs.5.00 lacs for

execution of work in 08 Panchayat Ghars and thus, it amounts to commission of offence. Further allegations in the sanction

are levelled against the Director for receiving kickbacks through Bank accounts maintained and operated by brother and

wife of the Director. It is also alleged that the three BDOs did not execute any work in the Panchayat Ghars but dumped the

substandard material through the team of Engineering Experts and caused loss to the State Exchequer. According to the

petitioner, the allegations levelled against him are contradictory in nature inasmuch as the allegations levelled in FIR

contradict with the allegations levelled in the prosecution sanction and that it can be easily assessed and determined that no

offence is made out against the petitioner and other higher ranking officers on the basis of such allegations and there is no

evidence against them which would suggest that they have committed any offence. It is also contended that the respondents

have not clarified the said position as also pleaded in writ petition but have simply levelled the allegations in the reply. The

estimate prepared by the Executive Engineer R&B (Electric) was considered and approved by the Government for which a

government order was issued and the action taken by the Government authorities has been found justified in investigation.

The direction given by the Government to get the work executed through Self Help Groups has also been found justified in

investigation and therefore, the subordinate authorities from the rank of the Director had no option but to obey and act upon

the directions of the Government. Till the said orders were issued, the subordinate authorities had no role to play and,

therefore, the question of the conspiracy in the said action does not arise. It is further submitted that the subordinate

authorities from the rank of the Director, acted upon the directions and forwarded the funds to the lower cadre officers, i.e.

BDOs and Engineering Staff for executing the works and as such the action of the Director and ACD is completely legal and

justified in all terms and there is absolutely no question of any offence, being made out in the facts and circumstances of the

case.

SWP no.1946/2013

Petitioner no.1 claims that he was working as the Assistant Director (Planning) in the Directorate of Rural Development

Department, Kashmir, and has retired on superannuation. The petitioner no.2 was also working as Junior Assistant in the

Directorate of Rural Development Department, Kashmir, and was posted in the office of the Block Development Officer,

Dachnpora, Bijbehara during the period 2004-05. It is contended that the Government of Jammu and Kashmir, as a policy

decision, had decided that certain funds available with the Government under 11th Finance Commission during 2004-05,

would be utilized for electrification of the completed Panchayat Ghars in the State of Jammu and Kashmir and each

Panchayat Ghar would be provided Rs.0.70 lacs for the said purpose duly estimated by the Executive Engineer R&B (PWED)

Department. By the Government Order no.203-2004 dated 28.09.2004, an amount of Rs.1.00 crore was released in favour of

the Director, Rural Development Department, Kashmir, for its utilization for the electrification of Panchayat Ghars, which

were complete during 2004-2005 and each Panchayat Ghar was provided an amount of Rs.0.70 Lacs for the said purpose, duly

estimated by the Executive Engineer (Electric) R&B (PWD). This was to be done with respect to the two Divisions of the

State. An amount of Rs.1.00 crore was released vide Government order no.203-2004 dated 28.09.2004 in favour of the

Director, Rural Development Department, Kashmir, for its utilization for the electrification of Panchayat Ghars, which were

complete during 2004-2005. The said government order provided that the electrification work was to be got executed through

the Self Help Groups (SHGs) duly registered with the Government and having specialisation in the field of theÂ

electrification, thereby leaving no scope to get the said electrification work done through some other agency/means,

including inviting of tenders. The order further provided that for the electrification of each Panchayat Ghar, an amount of

Rs.0.70 lac was earmarked and the said work was to be got done within the said amount, meaning thereby that the quality

and quantity of the material to be used for the electrification work would depend upon the amount so allotted. In strict

conformity with the Government Order no.203-2004 dated 28.09.2004, the Director, Rural Development Department,

Kashmir, vide Order no.137-DRDK of 2004 dated 14.10.2004 and in compliance with the authorisation of the Administrative

Department, the Self Help Groups, approved by the concerned Agencies of the Government, were to execute the works at

the cost of Rs.0.70 lacs in every Panchayat Ghar and the funds provided had to be utilised for the purpose, for which those

were provided. It was also directed that the work would be got executed as per the estimate prepared by the PWD (R&B)

Electric Srinagar and approved by the Government. The order also provided that all the codal formalities had to be complied

with. The orders of like nature, it is next averred, were also issued in other districts of Kashmir and Jammu Divisions and

strictly in accordance with the Government Order no.203-2004 dated 28.09.2004, the electrification work of the Panchayat

Ghars was allotted to the Self Help Groups. It is also stated that as per the procedure, the works after allotment were to

be done by the concerned agency to which the work was allotted. However, the concerned officers of the agency, i.e. Rural

Development Department, were supervising the work and ultimately it depended upon the final bills, which were to be

prepared and in case there was any deviation or incompletion of the works, the same was to be completed o reported at the

time of the final bills. It is also contended that so far the work was not completed, no final bill was prepared, and the work

was executed as per the approved estimate. Insofar as the petitioners are concerned, they had no role to play in giving the

certificates about the quality of any product. It is further submitted that even otherwise also, it is not permissible under law

to give any specific name or brand to be supplied for the work, unless it is not specifically provided, though any brand having

ISI mark has to be treated as approved as per the Government of India Regulations. The type/design of the work was also

framed, approved and fixed by the Government itself and the petitioners could have not gone beyond that. While as the

aforesaid works were still under process, all of a sudden on the basis of some complaint, it appears that police station

Vigilance Organisation Kashmir had registered an FIR no.18/2005 on the allegation that the huge monetary benefit has been

provided to some private contractors and great loss has been caused to the State Exchequer. Besides, it was also alleged

thatmain service line of the Panchayat Ghars had not been laid and that the items of a particular mark/brand had not been

used/installed in the works, as such, case under Section 5(2) of the Prevention of Corruption Act was registered. It is

maintained that due care has been taken into consideration regarding the fact that for the purposes of preparation of the

Estates and Type Designs, the estimates shall be got prepared from the Experts and thereafter the works are executed

under the guidance of the Engineering Wing of the Department. So, consequently, the Government was requested and the

Government got the type design and estimates prepared itself through Electric Wing, Kashmir. The estimates and the

specifications of the material for the said works were also got prepared through the Electric Division of R&B Department

Kashmir with respect to the Kashmir Division on the directions and guidance of the Government. These specifications were

approved by the Government vide order no.203-2004 dated 28.9.2004 as is also approved from the order no.137-DRDK of 2004

dated 14.10.2004. As per the scheme of the Government, which was communicated vide Government order no.203-2004 dated

28.9.2004, the works were got executed through Self Help Groups, however, abundant caution was taken when the work was

got executed under the supervision of the Rural Development Department. All the necessary care had been taken and all the

works were to be executed within the requisite budgetary provision under the 11th Finance Commission Award and the

Scheme was going to expire by March 2005, so the works were to be got executed by the end of March 2005. So all the efforts

were made that all the works would be done as per the specifications and within the stipulated period of time.Â

It is claimed that when the works were under execution, because of unexpected heavy snowfall in the month of November

2004, the huge losses were suffered in Kashmir and even certain villages got washed away because of the snow in Waltengo,

District Anantnag, and consequently the pace of the work got affected and the material, which was stocked at various places,

could not be utilized within time. It is also contended that it appears that certain vested interested persons wanted to blow

out of this proportion and appears to have made the false and frivolous complaints on the basis whereof it appears that two

FIRs 18 & 19 of 2005 P/S VOK, got registered. The Directorate of Rural Development Department vide Order no.798DRDK of

2005 dated 19.9.2005, had asked the Vigilance Officers of the Department to make thorough verification and in the

meanwhile, the SSP (ABR) Vigilance Organisation, Kashmir, vide no.SSP(ABR) 2005-PA/113054 dated 12.7.2005,

communicated that there was no bar if the electrification works were executed in the Panchayat Ghar buildings chosen for

such works. Accordingly, the instructions of the VOK were passed on the Assistant Commissioner Development, Anantnag

and Block Development Officers, for compliance. By Government Order no.128-RD of 2005 dated 17.6.2005, Shri Hafiz Ullah

Qadiri, Additional Secretary to Government, Rural Development Department and an Executive Engineer to be nominated by

the Power Development Department, were appointed as Enquiry Officers, to enquire into the alleged financial irregularities

committed by various drawing and disbursing officers of Rural Development Department and use of substandard material by

them particularly in the Districts of Anantnag and Baramulla in electrification of the Panchayat Ghars during the year 2004-

2005 out of the 11th Finance Commission Award. The said Committee, according to the petitioners, submitted an interim

enquiry report, which appears to have pointed certain deficiencies and subsequently in terms of the Government order

no.1456-GAD of 2005 dated 25.11.2005, a Committee, comprising of three IAS Officers, was constituted for verifying the

findings of the Enquiry Report regarding electrification of the Panchayat Ghars of Districts Anantnag and Baramulla. The

committee of three IAS Officers appear to have gone through the detailed report and subsequently submitted the report

regarding the findings of the enquiry report qua the electrification of Panchayat Ghars. The committee had come to the

conclusion that during the physical checks of some of the Panchayat Ghars in District Anantnag and Baramulla to ascertain

the veracity of the physical verification reports of the two committees, constituted by the then Director, Rural Development

Department, the number of electric items were found to correspond with the numbers mentioned in the Physical Verification

Reports furnished by the said committees. The said committee members, it is asserted, had also submitted another report on

18.12.2005, wherein they had said that the items had corroborated with the reports submitted by the two committees. It is

averred that from the report and the verification made by the two Committees, it has been found and ascertained that the

proper electrification of the Panchayat Ghars in both the Districts had been made as per the estimates. It is contended that

in the verifications/enquiries conducted by the departmental vigilance officers, it has been reported and even corroborated

by the committee of senior three IAS officers that more than 90% works stand already executed. Even the Accountability

Commission took suo moto cognisance of the matter and the said Commission also indicted the Government and in fact as

the Government that the concerned minister of the Rural Development Department be also made party to the proceedings.

The Accountability Commission also appears to have come to the conclusion that in case the scheme was bad, it was bad with

respect to other Panchayat Ghars of the entire State and it cannot be limited to two districts only, because by doing so, it

may appear to be based on mala fides. After taking suo moto cognisance of the matter and coming to the aforesaid conclusion,

the officers/officials of the whole State were arrayed for the enquiry and the same is presently going on. Arraying of different

set of the officers/officials as accused by the Accountability Commission, came to be challenged before this Court in a writ

petition, which is pending adjudication. It is claimed that no case is made out against the employees of the Rural

Development Department and they had no role to play in the execution of the electrification works in the Panchayat Ghars.

It was as per the Government policy, guidelines and the specifications as laid down in the Government order that the

electrification work was got executed through Self Help Groups, named by the Government and not by any private

contractor and that too as per the specifications approved by the Executive Engineers (R&B) PWD and Electric, Srinagar.

The petitioners claim that it appears that even on the basis of no case, the Vigilance Organisation is adamant to make some

of the officers/officials of the Rural Development Department as scapegoats for none of their faults, as a result whereof, some

of the officers of the Rural Development Department have already filed a writ petition, challenging the grant of sanction for

launching prosecution against them. Despite the fact that the Accountability Commission had also in its preliminary report,

it appears, made an opinion that there appears to have been error in the policy of the Government regarding the

electrification of the entire State and not with respect to two Districts only, but the respondent State only confined it to two

Districts in order to make certain employees including the petitioners as scapegoats. The petitioners also maintain that it

appears that certain high ups in the Government wanted to harass the petitioners and help some other employees and were

adamant to derail the departmental enquiry and make such a situation that the petitioners are harassed by going ahead with

FIRs and unnecessarily involving the petitioners and other employees of the two Districts only on one count or the other.

Though from all counts, in no way a criminal offence is made out, but still unnecessarily the petitioners and the employees of

the two Districts are harassed. As per the Business Rules, it is provided that in case any criminal challan is to be filed

against an employee, the opinion of the Law Department has to be sought. It appears that an opinion had been sought from

the Law Department and the Law Department, after going through the details of the FIR and other material placed before it,

including enquiry reports, had given its opinion whether the departmental enquiry needs to be conducted. Though the

department had initially started the process to formally appoint an enquiry officer with a technical officer and subsequently

appointing three IAS officers and on the basis of the report submitted by the said Committee, opinion of the Law Department

appears to have been sought and the Law Department opined that it is a fit case for departmental enquiry and not for

prosecution. However, despite all this, the respondents are adamant to file challan against the petitioners only in order to

harass them and put that challan as Damocles sword lurking on their heads. It is also stated that the petitioner no.1 has

already retired on superannuation. Â

The petitioners, on the strength of the case set up, entreat for the following relief:

a) Writ of certiorari, quashing FIR bearing no.18 & 19 of 2005 registered by the Police Station Vigilance Organization

Kashmir, so far it related to the petitioners;Â

b) Writ of mandamus, commanding the respondents to give the promotions to the petitioners to which they are entitled

including all the consequential benefits;

c) Writ of mandamus, commanding the respondents either to drop the proceedings against the petitioners or to conduct a

department enquiry as already partly conducted;

d) Mandamus, commanding the respondents to release all the service benefits to the petitioners of service benefits in any

manner whatsoever under the garb of pendency of the FIR against them.

Reply has been filed by the respondent no.4 (Commissioner, Vigilance Organisation). He insists the State Vigilance

Organisation, Kashmir, registered two cases bearing FIR nos.18 & 19 of 2005 in P/S VOK, against some officers/officials of the

Rural Development Department, Kashmir and private persons respectively, so as to investigation an allegation that the

accused in furtherance of the criminal conspiracy hatched with the Self Help Groups defrauded the Government exchequer

in the process of the execution of the electrification works in the Panchayat Ghar buildings in District Anantnag and

Baramulla. It is insisted that during the course of investigation it had revealed that during the year 2004-05, the Government

had earmarked Rs.1.00 crore for the electrification of Panchayat Ghar Buildings in District Anantnag and Rs.1.50 crores for

District Baramulla under 10 and 11th Finance Commission Award. These funds were kept at the disposal of the Director,

Rural Development, Kashmir. On receipt of the funds, the said Director, vide communication no.DRDK-PLG/7381 dated

3.8.2004, requested the Executive Engineer (Electric) R&B Division, Srinagar, for preparation of the estimate and had also

expressed his desire to get the works executed through his agency. The Executive Engineer, on receipt of the

communication, prepared the typical estimate showing Rs.70,000/- as cost for the electrification of each Panchayat Ghar

building. On receipt of the said typical estimate by the Director, the same was forwarded to the Secretary to Government,

Rural Development, J&K. The Government, after approving the estimate, placed Rs.1.00 crore at the disposal of the

Director, Rural Development, for the electrification of the Panchayat Ghars. The funds were allotted vide Government order

no.203 of 2004 dated 28.9.2004, which were in addition to the funds already allotted for the purpose. The Government, while

allotting the funds, had asked the Director to get the work of the electrification executed through the duly registered Self

Help Groups, having specialization in the electrification within the financial year 2004-05, so that the quality work is done. It

is maintained that the Government had referred the case to the Law Department for its opinion and the Law Department

had advised to hold the departmental enquiry against the accused persons. The Government, vide letter dated 14.10.2010,

sought the comments of the Vigilance Organisation on the opinion of the Law Department. In its reply to the Government,

the State Vigilance Organisation had made it clear that the findings returned by the two committees did not ipso facto bar

the criminal prosecution against the accused officials, who were found to have committed the criminal misconduct

punishable under the provisions of Prevention of Corruption Act and Ranbir Penal Code, as the criminal proceedings and

other proceedings are all together distinct and different. The committees constituted to conduct the physical verification of

the items used for the electrification of the Panchayat Ghar Buildings had no locus to look into the criminalities, like abuse

of the official position etc., as that question under law falls entirely within the purview of the investigating agency, who

conducted the investigation into the offences registered against the accused officials under the J&K P.C. Act. It is also

averred that a specific issue to verify the items used for electrification works was referred to the committees, but on the

other hand the issues relating to the fabrication of the documents, non-existent works, excess drawal of money, abuse of the

official position, the criminal conspiracy etc., were investigated and brought on record on the basis of the evidence surfaced

during the investigation. The standard of the probe, the mode of the enquiry and the rules governing the enquiry and the

investigation are entirely distinct and different. The issue under enquiry and the investigation against the accused official,

were independent of one another and are enquired and investigated into separately. The conclusion of the committee with

regard to the physical verification, as such, has no bearing on the investigation conducted, in the case and therefore, the

Government, while taking into consideration the comments of the State Vigilance Organisation, Kashmir, coupled with the

evidences granted sanction for launching prosecution against the petitioners and other inservice accused public servants

vide Government order no.36-GAD (Vig) of 2012 dated 5.10.2012 and the order no.37-GAD(Vig) of 2012 dated 05.10.2012.Â

To controvert what has asserted by the respondents in their reply, the petitioners have filed the rejoinder, in which they

maintain that wherever the works were not completed because of the filing of the FIR, those works were also completed with

the permission of the Vigilance Organisation. It is also stated that had not the FIR been filed, the works could have been

already completed and due to filing of the FIR, works for some time could not be accomplished.Â

SWP no.2098/2012

Petitioners, in the writ petition on hand, state that the Government of Jammu and Kashmir, as a policy decision, had

decided that certain funds available with it under 11th Finance Commission during 2004-05, would be utilized for

electrification of the completed Panchayat Ghars in the State of Jammu and Kashmir and each Panchayat Ghar would be

provided Rs.0.70 lacs for the said purpose duly estimated by the Executive Engineer, Electric and R&B (PWD) Departments.

This was to be done with respect to two Divisions of the State. It is stated that vide Government Order no.203 of 2004 dated

28.09.2003, an amount of Rs.1.00 crore was released in favour of the Director, Rural Development Department, Kashmir, for

its utilization for the electrification of the Panchayat Ghars, which were complete during 2004-2005 and each Panchayat

Ghar was provided uniform amount of Rs.0.70 lacs for the said purpose. The said work of electrification was to be got

executed through Self Help Groups duly registered with the Government. The Director, Rural Development Department,

Kashmir, issued Order no.137DRDK of 2004 dated 14.10.2004, accorded sanction to the engagement of seven Self Help

Groups for electrification of Panchayat Ghar buildings constructed in District Anantnag and Pulwama. The petitioners claim

that the allegations made in the FIR no.19/2005 P/S VOK, is not only baseless and concocted but are also against the

guidelines laid down in the government order, on the basis whereof, the work was got done and in case there was any laxity

that was on the part of the Government which had issued the order and not on the part of the petitioners, who had only

implemented the order in its true and correct perspective. Since there was no lapse or laxity on the part of the petitioners in

the execution of the electrification works in the Panchayat Ghars and they having been unnecessarily bundled in the FIR,

therefore, they approached the Government and the Director, Rural Development Department and explicated their position

and role in the matter, which forced the Government and the Director, Rural Development Department, to constitute a

departmental Vigilance team with the direction to have the inspection of the works and submit its detailed report. The

Departmental Vigilance Team made a detailed inspection and after verifying all the Panchayat Ghars, submitted a detailed

report of each Panchayat Ghar to the Director, Rural Development Department, on prescribed format supported with

videography. The committee constituted by the Director, testified it beyond doubt that the work has been executed as per

the sanctioned estimate and approval by the Administrative Department. After submission of the report by the committee

constituted by the Director, Rural Development Department, the Government also constituted a three-member Committee

of high ranking IAS Officers, which after conducting proceedings, also gave a detailed report, testifying thereby the report

given by the earlier committee and falsified the socalled allegations made by the Vigilance Organisation.Â

It is also averred that even the Law Department made it clear to the respondents to initiate the departmental enquiry

only because there was no criminal liability involved in the case. According to the petitioners, if the impugned FIR

no.19/2005 is taken on its face value, it per se does not constitute any offence inasmuch as it is neither feasible nor proper for

the Government to make the specification of a particular company or item of a particular company to be used for the

execution of any work. The only thing, which is to be mentioned as per the Government guidelines, is whether a particular

item is having an ISI mark and of required brand and make. The allegation levelled in the FIR that service line was not laid

is also bald allegation and without any basis inasmuch as the service line is always installed when the electrification work

within the house/building is complete and unless the inner work is not finalised coupled with the fact that in absence of the

watch and ward of the Panchayat Ghar, the line cannot be installed. The inner electrification work of the Panchayat Ghars,

in the present case, was not complete as yet, therefore, there was no question of laying the service line beforehand, more so

for the installation of the service line, it is necessary that first of all the department has to execute an agreement with the

Electricity Department and only then service line can be installed. The petitioners also aver that the Accountability

Commission has already taken cognisance of the matter and the said Commission in its wisdom had come to the conclusion

that it is basically the Government policy, which is faulty and questionable. The petitioners claims that they have not done

anything mala fidely and they have not committed any offence, irregularity or illegality. Whatever has been cone, the same

has been done on the basis of the Government policy. In case, what the Accountability Commission feels that the Government

policy is bad, then the liability will not be shifted to the petitioners because the petitioners had implemented the policy of

the Government and if the policy is bad, then it is the responsibility of the Government and not of the petitioners. The

petitioners claim that there is nothing wrong in the implementation of the policy by the petitioners, but there is some

mischief with the Government policy itself, for which the petitioners cannot be held responsible, thereby rendering the

impugned FIR liable to be quashed. Even otherwise, when the Accountability Commission is seized of the matter and has

powers of making investigation/ enquiries and the Vigilance Organisation has the mandate of making the investigation, then

the two parallel enquiries cannot go together. Since the one enquiry which is headed by the Commission is presided over by a

Retired Judge of the High Court and another enquiry conducted by a police officer, therefore, there is every possibility of

being conflicting conclusions. In case the Accountability Commission will come to the conclusion that there is a criminal

liability against the petitioners or any other person, only then an FIR can proceed further and a charge sheet will be filed.

Since the Accountability Commission has started the investigation/ enquiry, that enquiry is to be allowed to go and the

enquiry to be conducted by the Vigilance Organisation in a way will amount to scuttling the enquiry to be made by the

Commission. Conducting of the two enquiries, according to the petitioners, is prohibited under the Article 20 (2) of the

Constitution of India. Petitioners, on the edifice of the case set up, implore the following relief:

a) Certiorari, quashing the FIR bearing No.19 of 2005 registered by the police station Vigilance Organiation Kashmir, so far

it relates to the petitioners;

b) Mandamus, commanding the respondents not to proceed ahead with the investigation of the case registered under FIR

no.19/2005 P/S VOK or produce challan against the petitioners in the court of law.Â

c) Mandamus, commanding the respondents to release all the service benefits to the petitioners including the promotions

etcetera and not to deprive them of such service benefits in any manner whatsoever under the garb of the pendency of the

FIR against them.

Reply has been filed by the respondent no.4, vehemently resisting the writ petition. It is insisted that the petitioners

have caused huge loss to the State Exchequer by abusing their official position. It is stated that in terms of the government

Order no.203-RD of 2004 dated 28.09.2004, an amount of Rs.1.00 crore was released in favour of the Director, Rural

Development, Kashmir, for electrification of the Panchayat Ghar Buildings @ Rs.0.70 lacs per Panchayat Ghar. The work for

the same was to be executed through the registered Self Help Groups. The respondent also insists that FIR no.19/2005 was

registered in the police station VOK, but on the basis of reliable source and during the course of the investigation, it surfaced

that most of the works with respect to the electrification of the Panchayat Ghar buildings, were found either non-existent or

substandard. On the basis of the documentary evidence, it became crystal clear that the officials of the District Rural

Development Department, Baramulla, by abuse of their official position committed bungling and inflicted loss to the tune of

Rs.35,84,442/- to the State Exchequer and the case was accordingly closed as challaned against the delinquent

officers/officials including the petitioners. The Block Development Officers of various Blocks were found to have issued the

physical verification certificate qua the electrification works of the Panchayat Ghars in their respective blocks. The test

check conducted during the investigation revealed that the works were not executed as per the specification. The BDOs have

wilfully facilitated drawl of undue amount by giving the certificates against the non-existent or substandard works. The

certificates were, however, found issued by them in absence of any works register, work done estimates or work done bills

vetted by the Engineering Staff. Moreover, the accused persons, including the petitioners, had failed to execute the works of

the electrification of the Panchayat Ghars in District Baramulla in accordance with the typical estimate and the other

conditions provided by the Governmetn order and instead released the payment illegally and fraudulently thereby causing

loss to the State Exchequer. According to the respondent, taking cognisance by the Accountability Commission is a matter of

record.

Rejoinder has been filed by the petitioners, strenuously controverting the averments made by the respondent no.4. It is

claimed that the Law Department has opined to hold a departmental enquiry to see as to whether there is any irregularity,

the responsibility of the erring official shall be fixed. The Law Department, having gone through the entire record also in its

wisdom had come to the conclusion that there is no illegality, committed and that is why it was held to have a departmental

enquiry and not to go ahead with the FIR as the same will have the effect of harassing the officers. Even the General

Administration Department had also agreed with the opinion of the Law Department for holding the departmental enquiry.

As per the Business Rules, where legal issue is involved, the matter has to be referred to the Law Department and the

opinion of the Law Department has to be obtained. The Vigilance Organisation had been bent upon to harass the petitioners

by filing the FIR. After completion of the investigation, the matter was referred to the Government. The General

Administration Department vide letter dated 14.10.2008 had made it very clear that the physical verification of various items

used for electrification of Panchayat Ghars had been done and it reported that the electrification work has been completed

and nothing has been mentioned about shortfall or inferior quality of the items. The General Administration Department had

also given an opinion that it would be advisable to go for departmental enquiry instead of criminal prosecution. The FIR, as

maintained by the petitioners, is only by way of harassment inasmuch as there is nothing material and again in view of the

fact that most of the officials have already retired and filing of challan shall be by way of harassment to the said employees

who have rendered the services with great dedication in challenging the atmosphere.Â

SWP no.2099/2012

Petitioners, in the instant writ petition, beseech quashment of FIR no.18 of 2005 registered by Police Station VOK,

insofar as it relates to them, with a direction to respondents not to proceed ahead with the investigation of the case

registered under FIR no.18/2005 P/S VOK or produce challan against the petitioners in the court of law. The petitioners also

prays for a direction to respondents to release all the service benefits to the petitioners including the promotions etcetera

and not to deprive them of such service benefits in any manner whatsoever under the garb of the pendency of the FIR against

them.

Reply has been filed by the respondents 1, 2&4, vehemently resisting the writ petition. According to the respondents, the

investigation has established the abuse of the official position by the accused petitioners and as a sequel thereto, they have

been rightly arrayed as accused in the case. It is maintained that the committee, constituted to conduct the physical

verification of the items, used for electrification of the Panchayat Ghars had no locus to look into the criminalities like abuse

of official position etcetera, as that domain under law falls entirely within the purview of respondent no.4, who conducted

the investigation into the offences registered against the accused officers under the Prevention of Corruption Act. It is

averred that the J&K Accountability Commission does not take away or abrogate the powers of the investigation invested in

the State Vigilance Organisation. The presence of the proceedings before the Accountability Commission do not, thus, cause

any impediment as alleged or impose ban/prohibition for investigation and subsequent criminal prosecution against the

accused public servants. The suo moto cognisance by the State Accountability Commission does not create a legal bar for the

State Vigilance Organisation to pursue the case and seek the prosecution sanction in respect of the accused public

servants.Â

Rejoinder has been filed by the petitioners, controverting the averments made in the Reply by the respondents.Â

I have heard the learned counsel for the parties and considered the matter.

In terms of the Government order no.203-RD of 2004 dated 28.09.2004, sanction was accorded to the release of funds to

the tune of Rs.100.00 lacs (Rupees one crore only) under the 11th Finance Commission Award in favour of the Director, Rural

Development Department, Kashmir, for utilization on account of the electrification of Panchayat Ghar buildings (wherever

completed) during 2004-05 and authorisation of funds so released including available funds with Rural Development

Department, Kashmir, under 11th Finance Commission Award during 2004-05 for electrification of the completed Panchayat

Ghars @ Rs.0.70 lacs per Panchayat Ghar, estimated by the Executive Engineer, R&B (PWD) Srinagar. The Government

order no.203-RD of 2004 dated 28.09.2004 envisions that the release/authorisation of Rs.1.00 crore was subject to the

condition that the Director, Rural Development Department, Kashmir, would ensure that the electrification work is

executed through Self Help Groups, duly registered, having specialization in electrification, so that the quality work is done.

The Director in terms of the Government order no.203-RD of 2004 dated 28.09.2004, was also asked to ensure that the

electrification job is completed during the year 2004-05, which is the last year of 11th Finance Commission Award.Â

Consequent upon the authorisation of the Administrative Department, conveyed vide Government order no.203-RD of

2004 dated 28.09.2004, for the execution of the electrification of the Panchayat Ghar buildings through registered Self Help

Groups, the Director, Rural Development Department, Kashmir, vide Order no.137-DRDK of 2004 dated 14.10.2004

(Annexure P-7 to SWP no.2426/2012), accorded sanction to the engagement of seven Self Help Groups of Civil and Electrical

Engineers, registered by the Registrar of Firms J&K Government and sponsored by the Director, Employment, J&K, for

electrification of all the Panchayat Ghar buildings constructed in District Anantnag and Pulwama under 10th and 11th

Finance Commission Award as per the estimate of Executive Engineer, R&B (Electric Wing) Srinagar at a cost of Rs.0.70

lacs, per Panchayat Ghar building. The Order no.137-DRDK of 2004 dated 14.10.2004, issued by the Director, Rural

Development Department, Kashmir, also provides that the electrification works was to be got executed under the overall

supervision of the Executive Engineer, REW of the District, who had to constitute a committee of the well-versed engineers

for execution of the electrification in all the Blocks of the District for the speedy completion of the job as per the

specifications within the financial year and also to ensure utilization of the funds earmarked for the purpose and save the

Department from losing the funds under the 11th Finance Commission Award. The Order no.137-DRDK of 2004 dated

14.10.2004 issued by the Director, Rural Development Department, Kashmir, also provides that the distribution of the

Panchayat Ghars to the Self Help Groups would be done by the Executive Engineer, REW. The Order no.137-DRDK of

2004 dated 14.10.2004, as is discernible from its bare perusal, has laid certain conditions while according sanction to the

engagement of Self Help Groups, which include that the job will be completed during financial year without carrying any

liability to the next financial year; that the funds will be utilized for the purpose for which released without any deviation;

that the works shall be got executed as per the specifications as provided in the estimate prepare by the Executive Engineer

R&B (Electric Division) Srinagar without any deviation; that all codal formalities shall be fulfilled before execution of the

works; that the executing agency will enter into an agreement with the Department to the effect that the works entrusted

shall be got completed within the prescribed period within the approved cost and in case of any deviation, the penalty as

deemed fit by the department shall be imposed on the executing agency.Â

It may not be out of place to mention here that the Self Help Groups, seven in number, as is unequivocally evident from the

Order no.137-DRDK of 2004 dated 14.10.2004, issued by the Director, Rural Development Department, Kashmir, have been

nominated and engaged by the Director, Rural Development Department. In such circumstances, the present petitioners had

no role to play in engagement of the aforesaid Self Help Groups.Â

Assistant Director (Plg) in the Directorate of Rural Development, Kashmir, vide letter no.DRDK/Plg/16222 dated

28.01.2015 (Annexure P-8 to SWP no.2426/2012) requested the Assistant Commissioner, Development, Anantnag, to furnish

the list of the Panchayat Ghars constructed in the District out of 10th and 11th Finance Commission Award, which had not

been electrified as per the estimate of the R&B Division (Electric) Srinagar, so that the funds were released for execution of

the electrification of the said Panchayat Ghars. The Assistant Commissioner, Development, Anantnag, in terms of letter

no.ACDA/10638-51 dated 07.02.2015 (Annexure P-9 to SWP no.2426/2012) informed the Director, Rural Development

Department, Kashmir, that the Block Development Officers, Assistant Engineers, and Assistant Executive Engineers of the

District, have furnished the information in a Review Meeting that in all there are 125 un-electrified Panchayat Ghars in the

District. Here again a pause is must for the reason that a Review Meeting had been held by the field functionaries, in which

the information has been furnished as regards the Panchayat Ghars, where the electrification work was to be undertaken.

So, the electrification work vis-Ã -vis the Panchayat Ghars has not been undertaken in a hush-hush manner but in an open

and translucent manner and meetings with the field functionaries had been held.Â

By order bearing no.DRDK/Plg/17936-38 dated 09.03.2005 (Annexure P-11 to SWP no.2426/2012) the Director, Rural

Development Department, Kashmir, accorded sanction to the release of the additional funds amounting to Rs.20.00 lacs

under the 11th Finance Commission Award in favour of the Assistant Commissioner, Development, Anantnag, for utilization

during 2004-05, on the approved items of the works. In followance of the aforesaid allotment order, the Assistant

Commissioner, Development, Anantnag, issued a letter bearing no. ACDA / Elect / 2004-05 / 12134-39 dated 14.03.2005,

requesting the concerned Block Development Officers to execute the works strictly consistent with the conditions contained

therein, including that the work be executed in accordance with the approved cost and the sanctioned estimates; that the

works be executed through Self Help Groups; that the works be executed under the continuous supervision of the concerned

VLW/JE and to be monitored by the AEE/BDO; that the Panchayat Ghars be properly handed over to the VLW with complete

inventory after electrification with the necessary certification from the technical staff. An order no.133-ACDA of 2005 dated

25.03.2005, was also issued by the Assistant Commissioner, Development, Anantnag, releasing Rs.20.00 lacs in favour of the

Block Development Officers, Kulgam, D.Pora and Pahloo and they were asked to utilize the funds for the purpose for which

the same was released without any diversion or re-appropriation and physically check the work for the sanctioned estimates

approved type design and complete all codal formalities before release of payment. It was also made clear that the material

of the approved specification should only be accepted as per the contract. Subsequently various orders were made after

getting approval from the higher authorities.

The case of the respondents is that from the reliable sources, an information was received in the State Vigilance

Organisation, Kashmir, that in execution of the electrification work of the Panchayat Ghar Buildings in District Anantnag

during the financial year 2004-05, the Government officials and the contractors had hatched a conspiracy to cause loss to the

State Exchequer by preparing the exorbitant estimates and purchasing the substandard material for completing the

electrification work. On receipt of this information, a joint surprise check, according to the respondents, was conducted and

the allegations levelled in the source report were prima facie established. Accordingly, a case FIR no.18/2005 under Section 5

(2) of Prevention of Corruption Act read with Section 120-B, 167-A, 420-A RPC, was registered in Police Station VOK and the

investigation was taken up. During the course of the investigation, it has been prima facie established that the accused

persons including the petitioners in connivance with each other, have defrauded the State Exchequer to the tune of

Rs.37,57,474/- in District Anantnag and Rs.35,84,442/- in District Baramulla, thus, succeeded in obtaining the pecuniary

advantage illegally and dishonestly. The investigation of the said case FIR no.18/2005 has been closed as proved against the

accused persons including the petitioners on the strength of the evidence, oral as well as the documentary collected and in

the course of the investigation, a case for commission of offences punishable under Section 5(1)(c), 5(1)(d) read with Section

5(2) of the J&K Prevention of Corruption Act and Section 420-A, 467, 120-B RPC, was made out against the accused public

servants and non-officials. The investigation of the case was submitted to the Government for accord of sanction. Then the

authorities after examining the matter vide Government order no.36-GAD (Vig) of 2012 dated 05.10.2012, accorded sanction

for launching the prosecution against the accused persons including the petitioners.Â

As regards the case FIR no.19/2005 P/S VOK, the respondents maintain that from the reliable sources, an information was

received by the State Vigilance Organisation, Kashmir, that the officers of the District Rural Development Department,

Baramulla, have committed a large scale bungling in the electrification of the Panchayat Ghar Buildings during the financial

year 2004-05 and under a well-knit conspiracy and misuse of their official position conferred huge and undue monetary

benefit on the private contractors and themselves and concomitant loss to the State Exchequer. The Government had

allotted funds to the tune of Rs.1.50 crores for electrification of the Panchayat Ghar Buildings constructed out of the funds

allotted under the 10th and 11th Finance Commission Award in District Baramulla during the year 2004-05 and kept at the

disposal of the Director, Rural Development Department, Kashmir, who further kept the same at the disposal of Assistant

Commissioner (Development) Baramulla. Although, the Assistant Commissioner, Baramulla, allotted the work of execution

of the electrification on paper to three Self Help Groups, namely, M/s S. Construction, M/s Bismillah Construction and M/s G.

Construction Companies, yet the same was shown superficially with dishonest intention to all these works to one, namely,

Mushtaq Ahmad Ganie S/o Abdul Salam Ganie R/o Hariparigam, Tral, who actually was not a contractor, but a government

employee. The allotment was done without any tendering process and no method was used to allot the work on the

competitive rates. According to the respondents it has also been learnt that the supervision of the electrification work was

entrusted to the Block Development Officers instead of the Executive Engineer, REW, Baramulla or any other expert

engineer. The payment had been made to the so-called contractor without execution of the work as per the specification laid

down in the physical estimate, which had been got prepared through Executive Engineer (Electric) R&B Division, Srinagar.

On receipt of this information, a case FIR no.19/2005 under Section 5(2) of the Prevention of Corruption Act read with

Section 120-B RPC was registered in Police Station VOK and the investigation was taken up. During the course of the

investigation, according to the respondents, it has been established that the accused persons including the petitioners in

connivance with each other, have committed offences punishable under the Prevention of Corruption Act. The investigation

of the said case has been closed as proved against the accused persons including the petitioners on the strength of the

evidence, oral as well as the documentary collected and in the course of the investigation, a case for commission of offences

punishable under Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B RPC, was made out against the

accused public servants and non-officials. The investigation of the case was submitted to the Government for accord of

sanction. Then the authorities after examining the matter vide Government order no.37-GAD (Vig) of 2012 dated 05.10.2012,

accorded sanction to launch the prosecution against the accused persons including the petitioners. Â

It is important to mention here that the Director, Rural Development Department, Kashmir, vide Order no.435DRDK of

2005 dated 07.06.2005, directed conducting of a thorough probe into the allegations levelled by the VLW’s Association

Rural Development Department. It is soon thereafter that case FIR no.18/2005 dated 17.06.2005 P/S VOK under Section 5(2)

P.C. Act 2006 read with Section 167-A, 120-B, 420-B RPC and case FIR no.19/2005 under Section 5(2) P.C.Act read with

Section 120-B, 420 RPC, were lodged, with regard to the financial irregularities allegedly committed in electrifying the

Panchayat Ghars in Districts of Anantnag and Baramulla.Â

Germane it is to mention here, that during the course of investigation, Senior Superintendent of Police (ABR) VOK, vide

communication no.SSP(ABR)2005-PA/1139-54 dated 12.07.2005, addressed to Block Development Officers of District

Anantnag, has informed that the Organisation has already done videography of the most of the Panchayat Ghar Buldings as

regards the electrification works and it is required of all law abiding citizens in general and the Block Development Officers

in official capacity, in particular, not to alter or temper with the evidences as it stood on 18.06.2005. However, it was is

intimated by the Senior Superintendent of Police, (ABR) VOK that there is no bar if the electrification works are executed in

the Panchayat Ghar buildings, chosen for such works, but it was enjoined upon all the concerned that before taking up such

works at each Panchayat Ghar buildings, the office of SSP should be informed in advance and such works are brought into

the notice of the organisation. The said instructions were passed on to the Assistant Commissioner, Development, Anantnag

and Block Development Officers for compliance vide letter no.DRDK/E-Complaint/6421-34 dated 12.07.2015. The

aforesaid instructions were carried out in District Anantnag. It was also seen that the same treatment was adopted by the

Block Development Officers of District Baramulla. In order to ascertain the ground reality in the interest of public and

administration, it was felt to constitute two Committees, headed by Departmental Vigilance Officers to verify the same in

conformity with the estimate devised by the Electric Division of R&B Department. Accordingly, vide Order no.798/DRDK of

2005 dated 19.09.2005, issued by the Director, Rural Development Department, Kashmir, sanction was accorded to the

constitution of the two Committees for District Baramulla and Anantnag. The said committee were asked to submit their

report after on the spot verification within a period of seven days whether the electrification of the Panchayat Ghars has

been done in conformity with the approved estimate prepared by the Electric Division of R&B Department.

The J&K State Government through Rural Development Department also by Government Order no.128-RD of 2005 dated

17.06.2005, appointed Shri Hafiz Ullah Qadri, KAS, Additional Secretary to Government, Rural Development Department,

and an Executive Engineer to be nominated by the Power Development Department, as Enquiry Officers, who were asked to

collectively enquire into the alleged financial irregularities committed by various drawing and disbursing officers of the

Rural Development Department and use of substandard material by them particularly in the districts of Anantnag and

Baramulla in electrification of Panchayat Ghars during the year 20042005 out of the 11th Finance Commission Award. The

enquiry officers were asked to submit their report to the Government within a period of seven days along with their

recommendations.Â

The subject-matter of the case was directly taken up by the J&K Government through General Administration

Department, which in supersession of Government order no.1424-GAD of 2005 dated 22.11.2005, appointed a Committee,

comprising three IAS Officers, viz. Director, Rural Development Department; Deputy Commissioner, Budgam; and Vice

Chairperson, Lakes & Waterways Development Department, to verify the findings contained in the physical verification

report submitted by the Committee constituted by the Director, Rural Development Kashmir, vide order no.793-DRDK of

2005 dated 19.09.2005.Â

The Committee, so constituted, visited both the Districts of Anantnag and Baramulla and verified the physical

verification reports of the committees in respect of some of the Panchayat Ghars on random basis. The committee constituted

by the Director, Rural Development Department, Kashmir, vide Order no.798-DRK of 2005 dated 19.09.2005, had physically

verified various items and their numbers vis-Ã -vis the estimates of the electrification of the Panchayat Ghars provided to

them. Both the committees expressed their inability to verify the quality and assess the cost of these items in absence of

association of any technical expert with them. The committee, accordingly, conducted the physical check of the electrification

of some of the Panchayat Ghar Buildings in the Districts of Anantnag and Baramulla, listed in the physical verification

reports, furnished by the committee, constituted by the Director, Rural Development Department, Kashmir, vide order

no.798-DRDK of 20054 dated 19.09.2005. The Committee verified the findings of the two committees and physically checked

some of the Panchayat Ghars, listed out in the physical verification reports of the earlier committees. The Committee made

it clear that apparently the number of the electric items were found to correspond with the numbers mentioned in the

statements furnished by the earlier two committees. In that view of the matter, the report submitted by the Committee of

three IAS officers, does not support what has been alleged against the petitioners in in the FIR nos. 18 & 19 of 2005 P/S VOK

and the Sanction granted by the respondents for prosecution of the petitioners. The report of three IAS Officers has,

therefore, proved as Achilles’ heel for the respondents as against the petitioners.

Nevertheless, this adage does not clinch the matter here as a lot needs discourse.Â

The Law Department of the J&K Government is an important Department of the State of Jammu and Kashmir. All the

departments of the J&K State are required, as enjoined by the J&K Government Business Rules, to obtain the opinion from

the Law Department on the issue(s) concerning the statutory rules, notifications or issuance of an order(s) or to sanction

under a statutory power the issue of any rule, bye-law, notification or any order by a subordinate authority. Not only this, all

the Administrative Departments, including respondents herein, have to consult the Law Department on the construction of

the Statute(s), Act(s), Regulation(s), Statutory Rule(s), and even as regards the issuance of the order(s) and the

notification(s). The Administrative Departments are also required to consult the Law Department on any general legal

principles arising out of any case or institution or withdrawal of any prosecution at the instance of any Administrative

Department. Even in the cases of preparation of important contracts entered into by the Government, the Administrative

Departments have to consult the Law Department.Â

In the present case as well, the Commissioner of Vigilance, J&K, Srinagar, vide letters bearing no. SVO-FIR-18/2005K-

575-76 dated 15.01.2008 and no.SVO-FIR-19/2005-K577-78 dated 15.01.2008 on the subject of the case FIR no. 18/2005 and

19/2005 P/S VOK, submitted the Final Investigation Report to the General Administration Department, Government of

Jammu and Kashmir. The Final Investigation Reports, so submitted by the Commissioner of Vigilance, J&K, was referred to

the Law Department for the legal opinion, so that further course of action was taken on the edifice of the opinion, to be given

by the Law Department. The legal opinion was given by the Law Department, which was conveyed by the General

Administration Department, Government of Jammu and Kashmir, to the Commissioner of Vigilance, J&K, vide letter

no.GAD(Vig)-04-SP/2008-II dated 14.10.2008. What are the contents of the said communication, are germane and imperative

as it deals with and sets at rest the whole controversy in hand once for all, thus, imperative to be reproduced in verbatim

herein after:

“I am directed to refer to your letters No.SVO-FIR18/2005-K-575-76 dt: 15.01.2008 & SVO-FIR-19/2005-K-57778 dt:

15.01.2008 regarding subject cited above and to say that Final Investigation Reports submitted by the Vigilance Organisation

in aforementioned cases were referred to Law Deptt for their legal opinion which has been obtained and read as under:

“There are two impediments in granting sanction for prosecution against the accused persons as sought by the Vigilance

Organization. Firstly, the two Committees constituted by Director Rural Development Kashmir for physical verification of

various items used for electrification of Panchayat Ghars have reported that electrification has been completed and they did

not mention anything about the quality of items used in such electrification. The third Committee constituted by the

government vide G.O. No.1456-GAD of 2005 in order to verify the findings of the committees constituted by Director Rural

Development has also found that the number of electrification items used correspond to the numbers mentioned in the

statement by the above said two committees. The second impediment is the case pending before the Accountability

Commission. Though the said complaint has been stayed by the Hon High Court, yet it would be advisable to avoid duplicity

of actions in the matter.

In view of these factors, it would be advisable for the department to go for departmental inquiry instead of criminal

prosecution.â€​

In view of above, you are requested kindly to furnish your comments on abovementioned opinion of the Law Deptt.â€​

The above extracted excerpts of the communication no.GAD(Vig)-04-SP/2008-II dated 14.10.2008, are indubitable and

conclusive, somewhat hits the nail on the head. The Law Department of J&K has explicitly enjoined upon the General

Administration Department and Vigilance Organisation that once two Committees had been constituted for the physical

verification of various items used for the electrification of the Panchat Ghars, which had reported that the electrification had

been completed, there was no occasion or reason to grant sanction for prosecution against the accused persons, including the

present petitioners, by the Vigilance Organisation. Once that being the position, the impugned sanction granted for

prosecution of the petitioners is vitiated and liable to be quashed, as such. The Law Department has even categorically

advised the respondents not to go for criminal prosecution but to initiate departmental inquiry against the accused,

including the present petitioners. In such circumstances it was advisable for the respondents to initiate the departmental

inquiry instead of granting the sanction for prosecution of the petitioners.

It is pertinent to mention here that the impugned sanction for prosecution has been granted without considering all the

relevant material, including the opinion of the Law Department and, therefore, the impugned sanction for prosecution

against petitioners, is bad in law. The law is settled that the consideration of the material implies application of mind. The

order of sanction must ex facie unveil that the sanctioning authority had considered the evidence and other material placed

before it. It has to be proved in every case that the material was placed before the authority and mind was applied. If the

sanctioning order, ex facie disclosed that all the relevant material was placed before it and it is further discernible that all

such material has been perused and inference can be drawn that the sanction has been granted in accordance with law.

Section 197 of the Code of Criminal Procedure, Svt. 1989 (1933 A.D.) which deals with the prosecution of the Judges and

the Public Servants for the offence alleged to have been committed by them while acting or purporting to act in the discharge

of their official duty, lays down that no court shall take cognizance of such offences except with the previous sanction either

of the Central Government or the State Government, as the case may be.

Section 6 of the Prevention of Corruption Act, however, contains a special provision for sanction for the prosecution for a

few specific offences, including the offence punishable under Section 161 RPC. It provides as under:

“6. Previous sanction necessary for prosecution. â€"Â

(1) No Court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 or section 167-A of

the State Ranbir Penal Code, Samvat 1989 or under sub-section (2) or sub-section (3) of section 5 of this Act, alleged to have

been committed by a public servant except with the previous sanctionâ€

(a) in the case of a person who is employed in connection with the affairs of the State and is not removable from his office

save by or with the sanction of the Government.

(b) in the case of any other person of the authority competent to remove him from his office.

(c) in the case of person who is or has been a member of the Council of Ministers other than the Chief Minister, or the

Governor on the advice of the Chief Minister;

(d) in the case of person who is or has been a Chief Minister or the Governor;

(e) in the case of a person who is or has been a member of either House of the State Legislature of the Speaker of the

Legislative Assembly or the Chairman of the Legislative Council, as the case may be.

(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (I) should

be given by the Government or any other authority, such sanction shall be given the Government or authority which would

have been competent to remove the public servant from his office at the time when the offence was alleged to have been

committed;

(3) Notwithstanding anything contained in the Code of Criminal Procedure, Samvat 1989-

(a) no finding sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or

revision on the ground of any error, omission or irregularities in. the sanction required under sub-section (1), unless in the

opinion of that Court, a failure of Justice has in fact occasioned thereby; (b) no Court shall stay the-proceeding under this Act

on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such

error. Omission or irregularity has resulted in a failure of Justice; (c) no Court shall stay the proceedings under this Act on

any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any

enquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether any error. Omission or irregularity in, such sanction has occasioned or

resulted in a failure of Justice, the Court shall have regard to the fact whether the objection could and should have been

raised at any earlier stage in the proceedings.Â

Explanation. â€" For the purposes of this section-

(a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to

any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified

person or any requirement of a similar nature.â€​

Section 6 of the Prevention of Corruption Act, thus, places a bar on the Court from taking cognizance of the offences

specified in Subsection (1) against the Public Servants unless the prosecution for those offences has been sanctioned either

by the Central Government, if the person who has allegedly committed the offence is employed in connection with the affairs

of the Union Government and is not removable from his office except with the sanction of the Central Government, or by the

State Government if that person is employed in connection with the affairs of the State Government.Â

Subsection (2) of Section 2 of the Prevention of Corruption Act, Svt. 2006, envisions that a “public servant†means a

public servant as defined in Section 21 of the State Ranbir Penal Code and shall include a person who is or has been a

member of either House of the State Legislature or a member including a Minister of the State of the Council of Ministers or

every person who is or has been under the employment of the Government whether on permanent, temporary or work-

charge basis or every officer, servant or member, by whatever name called, of a Corporation or of a corporate or other body

which is established by or under an Act of the State Legislature or of the Parliament in force in the State. “Public

Servant†under the provisions of Section 21 of the Ranbir Penal Code, Svt. 1989, denotes a person falling under any of the

descriptions following namely:-

First. â€" Every Civil servant of the State;

Second. â€" Every Commissioned Officer in the military, naval or air force of India;

Third. â€" Every Judge including any person empowered by law to discharge, whether by himself or as a member of anybody

of persons, any adjudicatory functions;

Fourth. â€"Every officer of a Court of justice (including a liquidator, receiver or commissioner) whose duty it is, as such

officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take

charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve

order in the Court; and every person specially authorized by a Court of Justice to perform any of such duties;

Fifth. â€" Every juryman, assessor or member of a panchayat assisting a Court of Justice or public servant;

Sixth. â€" Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any

Court of Justice, or by any other competent public authority;

Seventh. â€" Every person who holds any office by virtue of which he is empowered to place or keep any person in

confinement;

Eighth. â€"Every officer of Government whose duty it is, as such officer, to prevent offences, to give information of offences,

to bring offenders to justice or to protect the public health, safety or convenience; Ninth. â€" Every officer whose duty it is, as

such officer, to take, receive, keep or expend any property on behalf of [the Government] or to make any survey, assessment

or contract on behalf of [the Government] or to execute any revenue-process, or to investigate or to report on any matter

affecting the pecuniary interests of [the Government] or to make, authenticate or keep any document relating to the

pecuniary interests of [the Government], or to prevent the infraction of any law for the protection of the pecuniary interests

of [the Government], and every officer in the service or pay of [the Government], or remunerated by fees or commission for

the performance of any public duty;

Tenth. â€" Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or

assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make,

authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

Eleventh. â€" Every servant under the Government of India who is posted, and when he is performing his legitimate duties,

within the State;

Twelfth. â€" Every servant of the Department of Devasthan;

Thirteenth. â€" Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise

an electoral roll or to conduct an election or part of an election;

Fourteenth. â€" Every officer or servant employed by a Municipal Committee, Town Area Committee, Notified Area

Committee, Panchayat, Co-operative Society or Co-operative Bank whether for the whole or part of his time, and every

member of such committee, society or bank;

Fifteenth. â€" Every officer or servant, and every member (by whatever name called) of a corporation engaged in trade or

industry or of any other autonomous body which is established by an Act of the State Legislature or of a Government

company as defined in any law for the time being in force in the State.

Sixteenth. â€" Every officer or servant including medical or paramedical staff of the Sher-i-Kashmir Institute of Medical

Sciences Srinagar.

The word “public servant†used in Section 21 of the Ranbir Penal Code is, therefore, of a wider amplitude and is not

used in the sense in which a servant is defined in the statutory rules or in Section 126 of the State Constitution. With the

broadening of the dimensions in the present democratic setup, the Government has also entered in the commercial field and

that by itself will not mean that any employee or an officer of a government undertaking would not be a public servant within

the meaning of Section 21 of the Penal Code. But if the “public servant†is not an employee of either the Central

Government or the State Government, sanction is not to be given by the authority competent to remove him from the office

held by him.

Once a person, against whom the prosecution is to be launched, is found to be covered by the definition of the public

servant and the requirement to that extent is satisfied, the next question whether he is to be prosecuted or not is considered

either by the Central Government or by the State Government and if the person is neither the employee of the Central

Government nor of the State Government, the question of sanction is considered by the person who is competent to remove

him from the office held by him.Â

Sub-section (2) of Section 6 of the Prevention of Corruption Act is clarificatory in nature inasmuch as it provides that if

any doubt arises whether the sanction is to be given by the Central Government or the State Government or any other

authority, it shall be given by the appropriate Government or the authority, which was competent to remove that person

from the office on the date on which the offence was committed. This rule is a departure from the normal rule under which

the relevant date is the date of taking cognizance, as laid down by the Supreme Court in R.S. Nayak v. A. R. Antulay AIR

1984 SC 684.Â

From a perusal of Section 6 of the Prevention of Corruption Act, it would appear that the Central or the State

Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of

each case and to decide whether that public servant is to be prosecuted or not. Since the Section clearly prohibits the Courts

from taking cognizance of the offences specified therein, it envisages that the Central or the State Government or the other

authority has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant

sanction.

In Gokulchand Dwarkadas Morarka v. The King, AIR 1948 PC 82, it was pointed out that:

“The sanction to prosecute is an important matter, it constitutes a condition precedent to the institution of the

prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High

Court seen to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought

to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or

economic grounds they regard a prosecution of substance it is plain that the Government cannot adequately discharge the

obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case.â€​

In Basdeo Agarwalla v. Emperor AIR 1945 FC 16, it was pointed out that the sanction under the Act is not intended to be,

nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete

strictness. The Supreme Court in State through Anticorruption Bureau, Government of Maharashtra, Bombay v.

Krishanchand Khushalchand Jagtiani, (1996) 4 SCC 472, while considering the provisions of Section 6 of the Prevention of

Corruption Act held that one of the guiding principles for the sanctioning authority would be the public interest and,

therefore, the protection available under Section 6 of the Act cannot be said to be absolute.Â

It is to be kept in mind that the sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an

acrimonious exercise but a solemn and sacrosanct act, which affords protection to the government servants against the

frivolous prosecutions. [See: Mohd. Iqbal Ahmed v. State of Andhra Pradesh, AIR 1979 SC 677].Â

Sanction is a weapon to ensure the discouragement of the frivolous and vexatious prosecutions and is a safeguard for the

gullible but not a shield for the guilty.

The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the

fact that all the relevant facts, the material and the evidence have been considered by the sanctioning authority.

Consideration implies the application of mind. The order of the sanction must ex facie disclose that the sanctioning authority

had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by

placing the relevant files before the Court to show that all the relevant facts were considered by the sanctioning authority.

[See also: Jaswant Singh v. The State of Punjab, AIR 1958 SC 12; State of Bihar & anr v. P. P. Sharma 1991 Cr.L.J. 1438 (SC)].

Since the validity of the “sanction†depends on the applicability of the mind by the sanctioning authority to the facts

of the case as also the material and the evidence collected during the investigation, it necessarily follows that the

sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether the

prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any

quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant

or not to grant the sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been

affected by any extraneous consideration. If it is portrayed that the sanctioning authority was unable to apply its

independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction,

the order will be bad for the reason that the discretion of the authority “not to sanction†was taken away and it was

compelled to act mechanically to sanction the prosecution. Same is the position in the present case. The sanctioning

authority, while sanctioning the prosecution by the impugned sanction order, has remained oblivious to the fact that the Law

Department has categorically made it clear that it would be sagacious for the department to go for departmental inquiry

instead of the criminal prosecution.

Once the Law Department has categorically asked the respondents not to sanction the prosecution against the petitioners,

there was no occasion or reason for the respondents to issue or pass the order of sanction against the petitioners. The

impugned sanction, in that view of matter, suggests and portrays confliction and confusion in issuance thereof. Having said

so, impugned sanction is bad in the eye of law and liable to be quashed, as such.

It is imperative to mention here that indubitably the judicial process should not be an instrument of oppression or

needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant

facts and circumstances into consideration before issuing the process, lest it would be an instrument in the hands of private

complainant as vendetta to harass the persons needlessly. It is equally well settled that summoning of an accused in a

criminal case is a serious matter and the order taking cognizance by the Magistrate summoning the accused must reflect that

he has applied his mind to the facts of the case and the law applicable thereto.Â

The broad guidelines for quashing of the criminal prosecution have laid down by the Supreme Court in State of Haryana

and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335. The Supreme Court has elaborately considered the scope and

ambit of the Section 482 Cr. P.C. and Article 226 of the Constitution of India, in the context of quashing the proceedings in

the criminal investigation. After noticing various earlier pronouncements, the Supreme Court enumerated certain categories

of the cases by way of illustration, where the power under the Article 226 of the Constitution can be exercised to prevent the

abuse of the process of the Court or to secure the ends of justice. Paragraph 102, which enumerates the seven broad

guidelines and categories of the cases where the power can be exercised under Article 226 of the Constitution and Section

482 Cr. P.C., are extracted as follows:

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the

principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under

Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give

the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the

process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly

defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds

of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and

accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a

cognizable offence, justifying an investigation by police officers under 156 (1) of the Code except under an order of a

Magistrate within the purview of Section 155 (2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do

not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no

investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the

Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no

prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a

criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific

provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted

with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal

grudge.â€​

A three-Judge Bench of the Supreme Court in State of Karnataka v. M. Devenderappa and another, 2002 (3) SCC

89, had an occasion to consider the ambit of Section 482 Cr.P.C. The Supreme Court has laid down that the authority of the

Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the

Court has power to prevent the abuse. It further held that the Court would be justified to quash any proceeding if it finds

that the initiation/ continuance thereof amounts to the abuse of the process of the Court or quashing of these proceedings

would otherwise serve the ends of justice. Following was laid down in paragraph 6:

“6......All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their

constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on

the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law

gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court

does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised

sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section

itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts

exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to

produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action

which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash

any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these

proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine

the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the

complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.â€​

Further in paragraph 8 following was stated:

“8.....Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect

and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing

process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person

needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and

bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where

the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or

otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (AIR 1992

SC 604).â€​

In Sunder Babu and others v. State of Tamil Nadu, 2009 (14) SCC 244, the Supreme Court was considering the challenge

to the order of the Madras High Court. It was contended before the Supreme Court that the complaint filed was nothing but

an abuse of the process of the law and the allegations were unfounded. The prosecuting agency contested the petition, taking

the stand that a bare perusal of the complaint discloses commission of the alleged offences and, therefore, it is not a case

which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. The

Supreme Court after referring to the judgment in Bhajan Lal’s case (supra), held that the case fell within Category 07.

The Supreme Court quashed the proceedings.Â

In another case of Priya Vrat Singh and others v. Shyam Ji Sahai 2008 (8) SCC 232, the Supreme Court relied on Category

07 as laid down in State of Haryana v. Bhajan Lal (supra). In the above case the Allahabad High Court had dismissed an

Application for quashing the proceedings under Section 494, 120-B, and 109 IPC and Section 3 and 4 of the Dowry Prohibition

Act. After noticing the background facts and parameters for exercise of the powers under Article 226 and Section 482 Cr.

P.C., the Supreme Court has held that Article 226 and Section 482 Cr. P.C. do not confer any new power on the High Court. It

only saves the extraordinary and inherent powers which the Court possessed. It is neither possible nor desirable to lay

down any inflexible rule which would govern the exercise of extraordinary and inherent jurisdiction. No legislative

enactment dealing with procedure can provide for all cases that may possibly arise. The Courts, therefore, have

extraordinary and inherent powers apart from express provisions of law which are necessary for proper discharge of

functions and duties imposed upon them by law. That is the doctrine, which finds expression in the section, which merely

recognises and preserves inherent powers of the High Courts. All courts, whether the civil or criminal, possess, in the

absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to

undo a wrong in the course of the administration of justice on the principle quando lex aliquid alicui concedit, concedere

videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot

exist).Â

While exercising powers under Article 226 of the Constitution, the Court does not function as a court of appeal or

revision. Extraordinary jurisdiction under Article 226 though wide has to be exercised sparingly, carefully and with caution

and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito

justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists

for advancement of the justice and if any attempt is made to abuse that authority so as to produce injustice, the Court, it be

noted, has power to prevent the abuse. It would be an abuse of process of the Court to allow any action which would result in

injustice and prevent promotion of justice. In exercise of the powers, the Court would be justified to quash any proceeding if

it finds that the initiation/continuance thereof amounts to abuse of the process of the Court or quashing of these proceedings

would otherwise serve the ends of justice. An aggrieved party can invoke the jurisdiction of the High Court under Article 226

of the Constitution of India, being the extraordinary jurisdiction and the vastness of the powers naturally impose

considerable responsibility in its application. All the same, the High Court has got power and sometimes duty in appropriate

cases to grant reliefs, though it is not possible to pinpoint what are the appropriate cases, which are to be left to the wisdom

of the Court exercising the powers under Article 226 of the Constitution of India. [Vide: Km. Hema Mishra v. State of U.P.

and others (2014) 4 SCC 453].

The powers, as noticed above, possessed by the High Court under Section 561-A of the Code, are very wide and the very

plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this

power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High

Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire

facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the

issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient

material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its

extraordinary jurisdiction of quashing the proceeding at any stage. [See: Janata Dal v. H.S.Chowdhary, AIR 1993 SC 892;

Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1; and Minu Kumari v. State of Bihar, AIR 2006 SC

1937]

Inherent power, given the above discourse, given to the High Court under Section 482 Cr. P.C. is with the purpose and

object of advancement of the justice. In case the solemn process of the Court is sought to be abused by a person with some

oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if

the case falls in one of the categories as illustratively enumerated by the Supreme Court in State of Haryana v. Bhajan Lal

(supra). Judicial process is a solemn proceeding, which cannot be allowed to be converted into an instrument of the operation

or harassment. When there is material to indicate that a criminal proceeding is manifestly attended with mala fide and

proceeding is maliciously instituted with an ulterior motive, the High Court or for that matter this Court will not hesitate in

exercise of its jurisdiction under Section 561-A Cr. P.C. to quash the proceeding under Category 07 as enumerated in State of

Haryana v. Bhajan Lal (supra), which is to the following effect:

“(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously

instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and

personal grudge.â€​

Based on the holistic consideration of the facts and circumstances summarised in the foregoing paragraphs, the present

case appears to be one where Categories 01, 03 and 05 of the illustrations given in the case of State of Haryana v. Bhajan Lal

(supra) are clearly applicable.

Having regard to what has been said and done above, I think that there is necessity to exercise jurisdiction under Article

226 of the Constitution of India. Hence, the impugned order no.36-GAD (Vig) of 2012 dated 05.10.2012 insofar as it relates to

the grant of sanction for prosecution against the petitioners, is quashed. As a corollary, impugned FIRs bearing no.18 & 19 of

2005 registered by the Police Station Vigilance Organization Kashmir, are quashed. The respondents are directed to release

all the service benefits to the petitioners. Disposed of.

SWP no.127/2017

Petitioner claims that he came to be appointed in the department as Warder on 15.11.1984 and is holding the post of S. G.

Warder and is posted at District Jail Jammu.Â

The subject-matter of the instant case does not even remotely relate to the subject-matter of the aforementioned clubbed

writ petitions.

Registry to detag and list the instant matter independently. Â